IN THE COURT OF APPEALS OF MARYLAND. This Court s Standing Committee on Rules of Practice and

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1 IN THE COURT OF APPEALS OF MARYLAND R U L E S O R D E R This Court s Standing Committee on Rules of Practice and Procedure having submitted its One Hundred Seventy-Seventh Report to the Court recommending adoption of proposed new Rules 2-701, 2-702, 2-703, 2-704, 2-705, 2-706, 3-741, , , , and ; new Appendix: Guidelines Regarding Compensable and Non-Compensable Attorneys Fees and Related Expenses; and amendments to Rules 1-101, 1-341, 2-305, 2-433, 2-521, 2-603, 3-305, 4-102, 4-202, 4-213, 4-215, 4-262, 4-263, 4-301, 4-326, 8-205, 8-206, 8-503, and of the Maryland Rules of Procedure; all as set forth in that Report published in the Maryland Register, Vol. 40, Issue 8, pages (April 19, 2013); and The Rules Committee having withdrawn from the One Hundred Seventy-Seventh Report the proposed amendments to Rules 4-102, 4-202, 4-213, 4-215, and 4-301; and This Court having considered at open meetings, notices of which were posted as prescribed by law, all those proposed rules changes, together with comments received, making on its own motion certain additions and deletions to the proposed rules th changes, it is this 17 day of October, 2013,

2 ORDERED, by the Court of Appeals of Maryland, that the Rules in new Title 2, Chapter 700 (Claims for Attorneys Fees and Related Expenses) and new Rule be, and they are hereby, adopted in the form attached to this Order; and it is further ORDERED, that the Rules in Title 17, Chapter 400 (Proceedings in the Court of Special Appeals) and new Appendix: Guidelines Regarding Compensable and Non-Compensable Attorneys Fees and Related Expenses be, and they are hereby, adopted in the form previously published; and it is further ORDERED that amendments to Rules 1-341, 2-433, 2-521, and be, and they are hereby, adopted in the form attached to this Order; and it is further ORDERED that amendments to Rules 1-101, 2-305, 2-603, 3-305, 4-262, 4-263, 8-205, 8-206, 8-503, and be, and they are hereby, adopted in the form previously published; and it is further -2-

3 ORDERED that new Title 2, Chapter 700; new Rule 3-741; new Appendix: Guidelines Regarding Compensable and Non-Compensable Attorneys Fees and Related Expenses; and the amendments to Rules 1-341, 2-305, 2-433, 2-603, and hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in all actions and proceedings, and shall take effect and apply only to all actions commenced on or after January 1, 2014 and shall not apply to any action commenced on or before December 31, 2013; and it is further ORDERED that all other rules changes hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in all actions and proceedings, and shall take effect and apply to all actions commenced on or after January 1, 2014 and, insofar as practicable, to all actions then pending; and it is further -3-

4 ORDERED that a copy of this Order be published in the next issue of the Maryland Register. /s/ Mary Ellen Barbera Mary Ellen Barbera /s/ Glenn T. Harrell, Jr. Glenn T. Harrell, Jr. /s/ Lynne A. Battaglia Lynne A. Battaglia /s/ Clayton Greene, Jr. Clayton Greene, Jr. /s/ Sally D. Adkins Sally D. Adkins /s/ Robert N. McDonald Robert N. McDonald /s/ Shirley M. Watts Shirley M. Watts Filed: October 17, 2013 /s/ Bessie M. Decker Clerk Court of Appeals of Maryland -4-

5 MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER APPLICABILITY AND CITATION AMEND Rule to conform section (q) to revisions of Title 17, as follows: Rule APPLICABILITY... (q) Title 17 Title 17 applies to alternative dispute resolution proceedings in civil actions in the District Court, a circuit court, and the Court of Special Appeals, except for actions or orders to enforce a contractual agreement to submit a dispute to alternative dispute resolution

6 MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER GENERAL PROVISIONS AMEND Rule to add a certain requirement for a motion; to add a new section (b) pertaining to a statement regarding costs and expenses, including attorneys fees; to add a new section (c) pertaining to a certain response; to add a new section (d) pertaining to certain guidelines; and to make stylistic changes, as follows: Rule BAD FAITH - UNJUSTIFIED PROCEEDING (a) Remedial Authority of Court In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorney s attorneys fees, incurred by the adverse party in opposing it. (b) Statement Regarding Costs and Expenses, Including Attorneys Fees (1) Generally A motion requesting an award of costs and expenses, including attorneys fees, shall include or be separately -6-

7 supported by a verified statement that sets forth the information required in subsections (b)(2) or (b)(3) of this Rule, as applicable. (2) Costs and Expenses Other than Attorneys Fees The statement in support of a request for costs and expenses other than attorneys fees shall itemize the type and amount of the costs and expenses requested and shall include any available documentation of those costs and expenses. (3) Attorneys Fees (A) Except as otherwise provided in subsection (b)(3)(b) of this Rule or by order of court, the statement in support of a request for attorneys fees shall set forth: (i) a detailed description of the work performed, broken down by hours or fractions thereof expended on each task; (ii) the amount or rate charged or agreed to in writing by the requesting party and the attorney; (iii) the attorney s customary fee for similar legal services; (iv) the customary fee prevailing in the attorney s legal community for similar legal services; (v) the fee customarily charged for similar legal services in the county where the action is pending; and (vi) any additional relevant factors that the requesting party wishes to bring to the court s attention. (B) Unless otherwise ordered by the court, a statement in support of a request for attorneys fees not exceeding $500 need -7-

8 not contain the information set forth in subsection (b)(3)(a)(iv) and (v) of this Rule. (c) Response Within 15 days after the filing of the statement, the offending party may file a response. (d) Guidelines In determining an award of attorneys fees and related expenses in excess of $500 under this Rule, the court may consider the Guidelines Regarding Compensable and Non-Compensable Attorneys Fees and Related Expenses contained in an Appendix to these Rules. Source: This Rule is derived in part from former Rule 604 b and is in part new. -8-

9 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER PLEADINGS AND MOTIONS AMEND Rule to add a cross reference concerning attorneys fees, as follows: Rule CLAIMS FOR RELIEF A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain a clear statement of the facts necessary to constitute a cause of action and a demand for judgment for the relief sought. Unless otherwise required by law, (a) a demand for a money judgment that does not exceed $75,000 shall include the amount of damages sought, and (b) a demand for a money judgment that exceeds $75,000 shall not specify the amount sought, but shall include a general statement that the amount sought exceeds $75,000. Relief in the alternative or of several different types may be demanded. Cross reference: For pleading requirements and other procedures when attorneys fees are claimed, see the Rules in Title 2, Chapter 700. Committee note: If the amount sought exceeds $75,000, a general statement to that effect is necessary in order to determine if the case may be removed to a federal court based on diversity of citizenship. See 28 U.S.C.S A specific dollar amount must be given when the damages sought are less than or equal to $75,000 because the dollar amount is relevant to determining whether the amount is sufficient for circuit court jurisdiction or a jury trial. -9-

10 Source: This Rule is derived in part from former Rules 301 c, 340 a, and 370 a 3 and the 1966 version of Fed. R. Civ. P. 8 (a) and is in part new. -10-

11 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE CIRCUIT COURT CHAPTER DISCOVERY AMEND Rule to add to sections (a) and (d) the words costs and before the word expenses ; to add language to the tagline of section (d); to add to section (d) a reference to Rule 2-434; to add a new section (e) pertaining to a verified statement regarding costs and expenses, including attorneys fees; to add a new section (f) pertaining to a response to a request for an award of costs and expenses, including attorneys fees; to add a new section (g) referring to the Guidelines Regarding Compensable and Non-compensable Attorneys Fees and Related Expenses; and to make stylistic changes, as follows: Rule SANCTIONS (a) For Certain Failures of Discovery Upon a motion filed under Rule (a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including one or more of the following: (1) An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order; (2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that -11-

12 party from introducing designated matters in evidence; or (3) An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the failing party if the court is satisfied that it has personal jurisdiction over that party. If, in order to enable the court to enter default judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings or order references as appropriate, and, if requested, shall preserve to the plaintiff the right of trial by jury. Instead of any order of those orders or in addition thereto, the court, after opportunity for hearing, shall require the failing party or the attorney advising the failure to act or both of them to pay the reasonable costs and expenses, including attorneys fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of costs and expenses unjust. (b) For Loss of Electronically Stored Information Absent exceptional circumstances, a court may not impose sanctions under these Rules on a party for failing to provide electronically stored information that is no longer available as a result of the routine, good-faith operations of an electronic -12-

13 information system. (c) For Failure to Comply with Order Compelling Discovery If a person fails to obey an order compelling discovery, the court, upon motion of a party and reasonable notice to other parties and all persons affected, may enter such orders in regard to the failure as are just, including one or more of the orders set forth in section (a) of this Rule. If justice cannot otherwise be achieved, the court may enter an order in compliance with Rule treating the failure to obey the order as a contempt. (d) Award of Costs and Expenses, Including Attorneys Fees If a motion filed under Rule or under Rule Rule 2-403, 2-432, or is granted, the court, after opportunity for hearing, shall require (1) the party or deponent whose conduct necessitated the motion, or (2) the party or the attorney advising the conduct, or (3) both of them to pay to the moving party the reasonable costs and expenses incurred in obtaining the order, including attorneys fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court, after opportunity for hearing, shall require the (1) moving party, or (2) the attorney advising the motion, or (3) both of them to pay to the party or deponent who opposed the motion the reasonable costs and expenses incurred in opposing the motion, including attorney's attorneys -13-

14 fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable costs and expenses incurred in relation to the motion among the parties and persons in a just manner. (e) Statement Regarding Costs and Expenses, Including Attorneys Fees If a motion or a response to a motion contains a request for an award of costs and expenses, including attorneys fees, the request shall (1) include, or (2) be separately supported by, a verified statement in conformance with Rule (b). With the approval of the court, the party requesting the award may defer the filing of the supporting statement until 15 days after the court determines the party s entitlement to costs and expenses, including attorneys fees. (f) Response to Request Within 15 days after the filing of a statement in support of a request for an award of costs, expenses, or attorneys fees, a party against whom the award in sought may file a response. (g) Guidelines In determining an award of attorneys fees and related expenses in excess of $500 under this Rule, the court may consider the Guidelines Regarding Compensable and Non-compensable Attorneys Fees and Related Expenses contained in an Appendix to -14-

15 these Rules. Source: This Rule is derived as follows: Section (a) is derived from former Rule 422 c 1 and 2. Section (b) is new and is derived from the 2006 version of Fed. R. Civ. P. 37 (f). Section (c) is derived from former Rule 422 b. Section (d) is derived from the 1980 version of Fed. R. Civ. P. 37 (a) (4) and former Rule 422 a 5, 6 and 7. Section (e) is new. Section (f) is new. Section (g) is new. -15-

16 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER TRIAL AMEND Rule to delete current section (d) and add a new section (d) specifying certain duties of judges, clerks, and other court officials and employees concerning written and oral communications from the jury, as follows: Rule JURY - REVIEW OF EVIDENCE - COMMUNICATIONS (a) Jurors' Notes The court may, and on request of any party shall, provide paper notepads for use by sworn jurors, including any alternates, during trial and deliberations. The court shall maintain control over the jurors' notes during the trial and promptly destroy the notes after the trial. Notes may not be reviewed or relied upon for any purpose by any person other than the author. If a sworn juror is unable to use a notepad because of a disability, the court shall provide a reasonable accommodation. (b) Items Taken to Jury Room Sworn jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take exhibits that have been admitted in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and consent of the court. Written or electronically recorded -16-

17 instructions may be taken into the jury room only with the permission of the court. Cross reference: See Rule (e). (c) Jury Request to Review Evidence The court, after notice to the parties, may make available to the jury testimony or other evidence requested by it. In order that undue prominence not be given to the evidence requested, the court may also make available additional evidence relating to the same factual issue. (d) Communications with Jury The court shall notify the parties of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury. (1) Notification of Judge; Duty of Judge A court official or employee who receives any written or oral communication from the jury shall immediately notify the presiding judge of the communication. If the communication pertains to the action, the judge shall promptly, and before responding to the communication, direct that the parties be notified of the communication and invite and consider, on the record, the parties position on any response. The judge may -17-

18 respond to the communication (A) in writing, or (B) orally in open court on the record. (2) Duty of Clerk The clerk shall (A) record on any written communication the date and time it was received by the judge, and (B) enter on the docket (i) any written communication and the nature of any oral communication, (ii) the date and time the communication was received by the judge, (iii) that the parties were notified and had an opportunity on the record to state their position on any response, (iv) how the communication was addressed by the judge, and (v) any written response by the judge to the communication. Source: This Rule is derived as follows: Section (a) is new. Section (b) is derived from former Rules 558 a, b and d and 758 b. Section (c) is derived from former Rule 758 c. Section (d) is derived in part from former Rule 758 d and is in part new. -18-

19 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE CIRCUIT COURT CHAPTER JUDGMENT AMEND Rule (b) to delete an obsolete provision and to require that a request for the assessment of certain costs be filed within a specified time, as follows: Rule COSTS... (b) Assessment by the Clerk The clerk shall assess as costs all fees of the clerk and sheriff, statutory fees actually paid to witnesses who testify, and, in proceedings under Title 7, Chapter 200 of these Rules, the costs specified by Rule (a). On written request of a party filed within 15 days after the later of the entry of judgment or the entry of an order denying a motion filed under Rules 2-532, 2-533, or 2-534, the clerk shall assess other costs prescribed by rule or law. The clerk shall notify each party of the assessment in writing. On motion of any party filed within five days after the party receives notice of the clerk's assessment, the court shall review the action of the clerk

20 MARYLAND RULES OF PROCEDURE TITLE 2 CIVIL PROCEDURE - CIRCUIT COURT CHAPTER 700 CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES TABLE OF CONTENTS Rule DEFINITIONS Rule SCOPE OF CHAPTER (a) Generally (b) Particular Claims Rule ATTORNEYS FEES ALLOWED BY LAW (a) (b) (c) (d) (e) (f) (g) Scope of Rule Pleading Scheduling Conference and Order Enhanced Procedures and Requirements for Certain Cases Evidence Determination of Award (1) If No Award Permitted (2) If Award Permitted or Required (3) Factors to Be Considered Judgment Rule ATTORNEYS FEES ALLOWED BY CONTRACT AS AN ELEMENT OF DAMAGES (a) Scope of Rule (b) Pleading (c) Scheduling Conference and Order (d) Presentation of Evidence (1) Generally (2) Judgment by Confession (e) Determination of Award (1) If No Award Permitted (2) Trial By Court (3) Trial by Jury (4) Limited Evidence Permitted (f) Part of Judgment -20-

21 Rule ATTORNEYS FEES TO A PREVAILING PARTY PURSUANT TO CONTRACT (a) Scope of Rule (b) Pleading (c) Scheduling Conference and Order (d) Enhanced Procedures and Requirements for Certain Cases (e) Determination of Award by Court (f) Factors to be Considered (g) Part of Judgment Rule FEES FOR APPELLATE LITIGATION -21-

22 MARYLAND RULES OF PROCEDURE TITLE 2 CIVIL PROCEDURE - CIRCUIT COURT CHAPTER 700 CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES ADD new Rule 2-701, as follows: Rule DEFINITIONS In this Chapter, except as otherwise provided or necessary implication requires: (a) Attorneys fees includes related expenses; and (b) Related expenses means expenses related to and incurred as part of the provision of legal services, including compensation for the services of paralegals and law clerks. Committee note: In Friolo v. Frankel, 373 Md. 501, 530 (2003), the Court held, for purposes of a claim under the Wage Payment Law, which allowed an award of reasonable counsel fees, that charges for paralegals and law clerks were subsumed within the attorneys fees and should not be separately charged as attorneys fees. It appears that most courts do allow compensation for paralegals and law clerks to be included in a statutory fee-shifting claim. The intent of this Rule is to allow the compensation paid to paralegals and law clerks for work done in connection with a claim permitting the recovery of attorneys fees to be included as a separately identified related expense. This is intended to reduce the amounts claimed for attorneys fees by encouraging attorneys to permit lower-paid paralegals and law clerks to perform tasks they properly can perform that otherwise would have to be done by the attorneys and would avoid the anomaly of labeling compensation paid to nonattorneys as attorneys fees. Source: This Rule is new. -22-

23 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES ADD new Rule 2-702, as follows: Rule SCOPE OF CHAPTER (a) Generally Subject to section (b) of this Rule, the Rules in this Chapter apply to actions in which, by law or contract, a party is entitled to claim attorneys fees from another party. Committee note: Maryland generally follows the American Rule under which a party is not liable for the attorneys fees of another party unless such liability is provided for by law or by a contract between the parties. Subject to the provisions of section (b) of this Rule, the Rules in this Chapter apply only to claims for attorneys fees that fall under the exceptions to the American Rule in civil litigation in a circuit court. A comparable Rule for claims in civil litigation in the District Court appears as Rule (b) Particular Claims The procedural requirements of these Rules do not apply to claims for attorneys fees (1) in an action under Code, Family Law Article where an award of attorneys fees does not depend on the applicant s having prevailed in the action or on any particular claim or issue in the action; (2) in a proceeding under Rules or 2-433, or any other Rule permitting an award of reasonable attorneys fees as a sanction or remedy for the violation of a Rule or court order; (3) by an attorney for legal services rendered by the attorney to the attorney s client; or -23-

24 (4) in an action to foreclose a lien under Title 14 of the Maryland Rules. In determining the reasonableness of any requested fee in the proceedings enumerated in this section, the court may apply some or all of the evidentiary requirements and standards set forth in the Rules in this Chapter, as appropriate under the circumstances. Cross reference: For the procedure to be followed in claiming attorneys fees in foreclosure cases, see Rules , , and Source: This Rule is new. -24-

25 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES ADD new Rule 2-703, as follows: Rule ATTORNEYS FEES ALLOWED BY LAW (a) Scope of Rule This Rule applies to claims for attorneys fees allowable by law to a party in an action in a circuit court. Committee note: This Rule applies predominantly to actions in which attorneys fees are allowed by statute. This Rule would also apply where attorneys fees may be awarded under common law or by a Rule, other than as set forth in Rule (b). (b) Pleading A party who seeks attorneys fees from another party pursuant to this Rule shall include a claim for such fees in the party s initial pleading or, if the grounds for such a claim arise after the initial pleading is filed, in an amended pleading filed promptly after the grounds for the claim arose. (c) Scheduling Conference and Order Unless the court orders otherwise, if a claim for attorneys fees is made pursuant to this Rule, the court shall conduct a scheduling conference and, as part of a scheduling order entered pursuant to Rule shall: (1) determine whether to require enhanced documentation, quarterly statements, or other procedures permitted by section -25-

26 (d) of this Rule; (2) determine whether evidence regarding the party s entitlement to attorneys fees or the amount thereof may practicably be submitted during the parties cases-in-chief with respect to the underlying cause of action or should await a verdict by the jury or finding by the court with respect to that underlying cause of action; and (3) in light of the determination made under subsection (c)(2), determine whether, pursuant to section (f) of this Rule, any award of attorneys fees will be included in the judgment entered on the underlying cause of action or as a separate judgment. Committee note: If the court intends to delay the presentation of evidence on the claim for attorneys fees until after a determination of the underlying cause of action, but desires to enter one judgment that would include the denial or grant of an award of attorneys fees, the jury s verdict or court findings on the underlying cause of action should be docketed, but the court must assure that no judgment is entered on the verdict or findings until the claim for attorneys fees is resolved. (d) Enhanced Procedures and Requirements for Certain Cases Upon a determination by the court that the case is likely to result in a substantial claim for attorneys fees for services over a significant period of time, the court may: (1) require parties seeking an award (A) to keep time records in a specific manner, and (B) to provide to parties against whom an award is sought quarterly statements showing the total amount of time all attorneys, paralegals, and other professionals have spent on the case during the quarter and the total value of that -26-

27 time; (2) determine whether, and to what extent, the Guidelines Regarding Compensable and Non-Compensable Attorneys Fees and Related Expenses contained in an Appendix to this Chapter shall be applied; and (3) establish procedures and time schedules for the presentation of evidence and argument on issues relating to a party s entitlement to an award and the amount thereof. (e) Evidence Evidence in support of or in opposition to an award shall focus on the standards set forth in subsection (f)(3) of this Rule. (f) Determination of Award (1) If No Award Permitted If, under applicable law, the verdict of a jury or the findings of the court on the underlying cause of action do not permit an award of attorneys fees, the court shall include in its judgment entered on the underlying cause of action the denial of such an award. (2) If Award Permitted or Required If, under applicable law, the verdict of the jury or the findings of the court on the underlying cause of action permit but do not require an award of attorneys fees, the court shall determine whether an award should be made. If the court determines that a permitted award should be made or that under applicable law an award is required, the court shall apply the -27-

28 standards set forth in subsection (f)(3) of this Rule and determine the amount of the award. Committee note: Where the claim for attorneys fees is based on law, rather than a contract, the determination of whether, in light of the verdict or findings on the underlying cause of action, an award must or should be made and, if so, the amount thereof is for the court. See Admiral Mortgage v. Cooper, 357 Md. 533, (2000); Friolo v. Frankel, 373 Md. 501, 519 (2003); Friolo v. Frankel, 403 Md. 443, 457, n.12 (2008). (3) Factors To Be Considered In making its determinations under subsection (f)(2) of this Rule, the court shall consider, with respect to the claims for which fee-shifting is permissible: properly; (A) the time and labor required; (B) the novelty and difficulty of the questions; (C) the skill required to perform the legal service (D) whether acceptance of the case precluded other employment by the attorney; (E) the customary fee for similar legal services; (F) whether the fee is fixed or contingent; (G) any time limitations imposed by the client or the circumstances; attorneys; (H) the amount involved and the results obtained; (I) the experience, reputation, and ability of the (J) the undesirability of the case; (K) the nature and length of the professional relationship with the client; and -28-

29 (L) awards in similar cases. Committee note: The factors listed in subsection (f)(3) of this Rule have been approved by the Court of Appeals in statutory feeshifting cases, where the lodestar method is applied in determining an award. See Monmouth Meadows v. Hamilton, 416 Md. 325, (2010). See Rule (f) for the factors to be applied in contractual fee-shifting actions. (g) Judgment Except as provided in subsection (f)(1) of this Rule, the grant or denial of an award of attorneys fees may be included in the judgment on the underlying cause of action or in a separate judgment, as directed by the court. The court shall state on the record or in a memorandum filed in the record the basis for its grant or denial of an award. Source: This Rule is new. -29-

30 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES ADD new Rule 2-704, as follows: Rule ATTORNEYS FEES ALLOWED BY CONTRACT AS AN ELEMENT OF DAMAGES (a) Scope of Rule This Rule applies to a claim for attorneys fees in an action in a circuit court that are allowed by a contract as an element of damages for breach of that contract. It does not apply to a claim for an award of attorneys fees to the prevailing party pursuant to a fee-shifting provision in a contract. Cross reference: See Rule for the procedure where a contract provides for an award of attorneys fees to a prevailing party in the litigation. (b) Pleading A party who seeks attorneys fees from another party pursuant to this Rule shall include a claim for such fees in the party s initial pleading or, if the grounds for such a claim arise after the initial pleading is filed, in an amended pleading filed promptly after the grounds for the claim arise. (c) Scheduling Conference and Order If a claim for attorneys fees is made pursuant to this Rule, unless the court orders otherwise, the court shall conduct -30-

31 a scheduling conference in conformance with Rule (c). Committee note: Unlike a claim under Rule based on feeshifting permitted by law, where attorneys fees are an element of damages for breach of a contractual obligation, any award must be included in the judgment entered on the breach of contract claim. In complex cases, however, where the evidence regarding attorneys fees is likely to be extensive, it may be expedient to defer the presentation of such evidence and resolution of that claim until after a verdict or finding by the court establishing an entitlement to an award. See section (d) of this Rule. In that event, the admonition in the Committee note to Rule (c) is especially critical that, although the verdict or findings on the underlying cause of action should be docketed, no judgment should be entered thereon until the claim for attorneys fees is resolved and can be included in the judgment. (d) Presentation of Evidence (1) Generally Evidence in support of or in opposition to a claim for attorneys fees under this Rule shall be presented in the party s case-in-chief and shall focus on the standards set forth in Rule (f)(3) or subsection (e)(4) of this Rule, as applicable. (2) Judgment by Confession If the party seeking attorneys fees has requested judgment by confession pursuant to Rule 2-611, evidence establishing entitlement to such fees and the reasonableness of the amount requested shall be included in the affidavit required by Rule (a). If judgment by confession is not entered or is stricken and the action proceeds to trial, the evidence may be submitted at trial in accordance with this Rule. (e) Determination of Award (1) If No Award Permitted If a verdict returned by a jury or findings made by the -31-

32 court do not permit an award of attorneys fees, the court shall include in its judgment on the underlying cause of action a denial of such an award. (2) Trial By Court If the underlying cause of action is tried by the court, the court shall determine whether an award of attorneys fees is required or permitted. If the court finds that an award is required, it shall determine the amount. If the court finds that an award is permitted but not required, it shall determine whether an award should be made and, if so, the amount thereof. In determining the amount of an award, the court shall apply the standards set forth in Rule (f)(3) or subsection (e)(4) of this Rule, as applicable. (3) Trial by Jury If the underlying cause of action is tried by a jury, the jury, under appropriate instructions from the court, shall determine, as part of its verdict, whether an award of attorneys fees should be made to a party based on a breach of the contract by another party and the amount of such an award. If an award is made, on motion by any party affected by the award, the court, applying the standards set forth in Rule (f)(3) or subsection (e)(4) of this Rule, as applicable, shall determine whether the amount of the award is reasonable and, if not, shall modify the award accordingly. This determination does not preclude any other relief the court may grant under Rules 2-532, 2-533, or

33 Committee note: This subsection preserves to the jury, in a breach of contract case where attorneys fees are part of the alleged damages, the right to determine whether an award should be made and, if so, in what amount, but preserves to the trial court the right to determine whether the award is reasonable. Under this approach, in the event of an appeal, the appellate court will have available both the jury s and the trial court s determination of reasonableness. (4) Limited Evidence Permitted If the claim for an award of attorneys fees does not exceed the lesser of 15% of the principal amount found to be due or $4,500, the court need not require evidence on all of the factors set forth in Rule (f)(3) if the party claiming the award produces evidence otherwise sufficient to demonstrate that the amount claimed is reasonable and does not exceed the amount that the claiming party has agreed to pay that party s attorney. The evidence shall include at a minimum: (A) a detailed description of the work performed, broken down by hours or factions thereof expended on each task; (B) the amount or rate charged or agreed to in writing by the requesting party and the attorney; and services. (C) the attorney s customary fee for similar legal Committee note: Section (e) follows the approach set forth in Monmouth Meadows v. Hamilton, 416 Md. 325 (2010), for contractual fee-shifting cases generally. Subsection (e)(4) is intended to permit the court to excuse the need to consider all of the Rule (f)(3) factors where the claim for attorneys fees does not exceed the lesser of 15% of the amount due or $4,500. Fees in those limited amounts are common in consumer transactions and have been found reasonable by the General Assembly in some of those settings. See Code, Commercial Law Article, (Consumer Loans) and (Retail Installment Sales). (f) Part of Judgment -33-

34 An award of attorneys fees shall be included in the judgment on the underlying cause of action but shall be separately stated. Source: This Rule is new. -34-

35 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES ADD new Rule 2-705, as follows: Rule ATTORNEYS FEES TO A PREVAILING PARTY PURSUANT TO CONTRACT (a) Scope of Rule This Rule applies to a claim for an award of attorneys fees to attributable to litigation in a circuit court pursuant to a contractual provision permitting an award of attorneys fees to the prevailing party in litigation arising out of the contract. It does not apply to a claim for attorneys fees allowed by contract as an element of damages for breach of the contract or to a claim for attorneys fees authorized by statute or other law. Cross reference: See Rules and (b) Pleading A party who seeks attorneys fees from another party pursuant to this Rule shall include a claim for such fees in the party s initial pleading or, if the grounds for such a claim arise after the initial pleading is filed, in an amended pleading filed promptly after the grounds for the claim arise. (c) Scheduling Conference and Order If a claim for attorneys fees is made pursuant to this -35-

36 Rule, unless the court orders otherwise, the court shall conduct a scheduling conference in conformance with Rule (c). (d) Enhanced Procedures and Requirements for Certain Cases Upon a determination by the court that the case is one that likely will result in a substantial claim for attorneys fees covering a significant period of time, the court may enter orders in conformance with Rule (d). (e) Determination of Award by Court Upon a jury verdict or, in an action tried by the court, a finding by the court in favor of a party entitled to attorneys fees as a prevailing party, the court shall determine the amount of an award in accordance with section (f) of this Rule. (f) Factors to be Considered (1) If the party seeking attorneys fees prevailed with respect to a claim for which fee-shifting is permissible, the court shall consider the factors set forth in Rule (f)(3) and the principal amount in dispute in the litigation, and may consider the agreement between party seeking the award and that party s attorneys and any other factor reasonably related to the fairness of an award. (2) If the claim for an award of attorneys fees does not exceed the lesser of 15% of the principal amount found to be due or $4,500, the court need not require evidence on all of the factors set forth in Rule (f)(3) if the party claiming the award produces evidence otherwise sufficient to demonstrate that the amount claimed is reasonable and does not exceed the amount -36-

37 that the claiming party has agreed to pay that party s attorney. The evidence shall include at a minimum: (A) a detailed description of the work performed, broken down by hours or factions thereof expended on each task; (B) the amount or rate charged or agreed to in writing by the requesting party and the attorney; and services. (C) the attorney s customary fee for similar legal Committee note: Subsection (f)(1) of this Rule follows the approach set forth in Monmouth Meadows v. Hamilton, 416 Md. 325 (2010), for contractual fee-shifting cases generally. Subsection (f)(2) of this Rule is intended to permit the court to excuse the need to consider all of the Rule (f)(3) factors where the claim for attorneys fees does not exceed the lesser of 15% of the amount due or $4,500. Fees in those limited amounts are common in consumer transactions and have been found reasonable by the General Assembly in some of those settings. See Code, Commercial Law Article, (Consumer Loans) and (Retail Installment Sales). (g) Part of Judgment An award of attorneys fees shall be included in the judgment on the underlying cause of action but shall be separately stated. The court shall state on the record or in a memorandum filed in the record the basis for its findings and conclusions regarding the denial or issuance of an award. Source: This Rule is new. -37-

38 MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER CLAIMS FOR ATTORNEYS FEES AND RELATED EXPENSES ADD new Rule 2-706, as follows: Rule FEES FOR APPELLATE LITIGATION A party who seeks an award of attorneys fees incurred in connection with an appeal, application for leave to appeal, or petition for certiorari shall file a motion for such fees in the circuit court that entered the judgment or order that is the subject of the appellate litigation. The motion shall be filed within 30 days after entry of the last mandate or order disposing of the appeal, application, or petition. Proceedings on the motion shall be in the circuit court and shall be consistent with the standards and procedures set forth in Rule or Rule 2-705, as applicable. Source: This Rule is new. -38-

39 MARYLAND RULES OF PROCEDURE TITLE 3 - CIVIL PROCEDURE -- DISTRICT COURT CHAPTER PLEADINGS AND MOTIONS AMEND Rule to add a cross reference concerning attorneys fees, as follows: Rule CLAIMS FOR RELIEF A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain a clear statement of the facts necessary to constitute a cause of action and a demand for judgment for the relief sought. Relief in the alternative or of several different types may be demanded. Cross reference: For pleading requirements and other procedures when attorneys fees are claimed, see Rule Source: This Rule is derived from former M.D.R. 301 a (ii) and the 1966 version of Fed. R. Civ. P. 8 (a). -39-

40 MARYLAND RULES OF PROCEDURE TITLE 3 - CIVIL PROCEDURE - DISTRICT COURT CHAPTER SPECIAL PROCEEDINGS ADD new Rule 3-741, as follows: Rule ATTORNEYS FEES (a) Definitions In this Rule attorneys fees and related expenses have the meanings set forth in Rule (b) Scope of Rule This Rule applies to claims made in an action in the District Court for attorneys fees allowed by law or by contract. The Rule does not apply to a dispute between an attorney and the attorney s client over the attorney s fee and it does not apply to a proceeding under Rule or other Rule permitting the award of reasonable counsel fees as a sanction or remedy for violation of a court order. (c) Request (1) Generally A claim for attorneys fees shall be made in the complaint, other pleading allowed by Rule 3-302, or amendment to a pleading allowed by Rule (2) Exception When the party seeking fees is a defendant in any action brought under Code, Real Property Article, Title 8, Subtitle 4; -40-

41 Title 8A, Subtitle 17; or , the claim may be made at trial. (d) Presentation of Supporting Evidence (1) Generally Except as provided in subsections (d)(2), (d)(3), or (d)(4) of this Rule or otherwise ordered by the court, evidence in support of or in opposition to the entitlement to such fees and the reasonableness of the amount requested shall be presented at trial of the underlying cause of action. (2) Judgment on Affidavit If the party seeking attorneys fees filed a motion for judgment on affidavit pursuant to Rule 3-306, evidence establishing the right to such fees and the reasonableness of the requested fee shall be included in an accompanying affidavit. If the action proceeds to trial, the evidence may be supplemented at trial. Cross reference: See Rule (d) for additional requirements if the action is based on an assigned consumer debt. (3) Judgment by Confession If the party seeking attorneys fees has requested judgment by confession pursuant to Rule 3-611, evidence establishing the right to such fees and the reasonableness of the requested fee shall be included in the affidavit required by Rule (a). If judgment by confession is not entered or is stricken and the action proceeds to trial, the evidence may be supplemented at trial. -41-

42 (4) Certain Actions Involving Real Property If the party seeking attorneys fees is a defendant in an action brought under Code, Real Property Article, Title 8, Subtitle 4; Title 8A, Subtitle 17; or who has complied with section (c) of this Rule and prevailed in the action, the court shall set a schedule for written submissions in support of and in opposition to the right to such fees and the reasonableness of the requested fees, or shall schedule a hearing, or both, as the court deems appropriate. (e) Determination of Award (1) Generally If the court concludes that an award of attorneys fees is permitted but not required, the court shall determine whether an award should be made and, if so, the amount thereof. If the court concludes that an award is required, it shall determine the amount thereof. (2) Amount Except as provided in subsection (e)(3) of this Rule: (A) if the claimed right to attorneys fees is based on law, the court shall apply the standards set forth in Rule (f)(3); (B) if the claimed right is based on a contract, the court shall apply the standards set forth in Rule (e)(2) or (f)(1), as applicable. (3) Exception If the claim for an award of attorneys fees does not -42-

43 exceed the lesser of 15% of the principal amount found to be due or $4,500, the court need not require evidence on all of the factors set forth in Rule (f)(3) if the party claiming the award produces evidence otherwise sufficient to demonstrate that the amount claimed is reasonable and does not exceed the amount that the claiming party has agreed to pay that party s attorney. The evidence shall include at a minimum: (A) a detailed description of the work performed, broken down by hours or factions thereof expended on each task; (B) the amount or rate charged or agreed to in writing by the requesting party and the attorney; and services. (C) the attorney s customary fee for similar legal Committee note: Subsection (e)(2)(b) of this Rule follows the approach set forth in Monmouth Meadows v. Hamilton, 416 Md. 325 (2010), for contractual fee-shifting cases generally. Subsection (e)(3) of this Rule is intended to permit the court to excuse the need to consider all of the Rule (f)(3) factors where the claim for attorneys fees does not exceed the lesser of 15% of the amount due or $4,500. Fees in those limited amounts are common in consumer transactions and have been found reasonable by the General Assembly in some of those settings. See Code, Commercial Law Article, (Consumer Loans) and (Retail Instalment Sales). (f) Judgment An award of attorneys fees shall be included in the judgment on the underlying cause of action but shall be separately stated. Source: This Rule is new. -43-

44 MARYLAND RULES OF PROCEDURE TITLE 4 - CRIMINAL CAUSES CHAPTER PRETRIAL PROCEDURES AMEND Rule by correcting an internal reference in the cross reference after section (b), by rewriting subsection (d)(2)(b) to clarify that the State is required to provide the names of certain witnesses under certain circumstances, and by adding a requirement that the State provide the telephone numbers of witnesses under certain circumstances, as follows: Rule DISCOVERY IN DISTRICT COURT... (b) Definitions In this Rule, the terms "defense," "defense witness," "oral statement," "provide," "State's witness," and "written statement" have the meanings stated in Rule (b). Cross reference: For the definition of "State's Attorney," see Rule (k) (l).... (d) Disclosure by the State's Attorney (1) Without Request Without the necessity of a request, the State's Attorney shall provide to the defense all material or information in any form, whether or not admissible, that tends to exculpate the defendant or negate or mitigate the defendant's guilt or punishment as to the offense charged and all material or -44-

45 information in any form, whether or not admissible, that tends to impeach a State's witness. Cross reference: See Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v. U.S., 405 U.S. 150 (1972); U.S. v. Agurs, 427 U.S. 97 (1976); Thomas v. State, 372 Md. 342 (2002); Goldsmith v. State, 337 Md. 112 (1995); and Lyba v. State, 321 Md. 564 (1991). (2) On Request On written request of the defense, the State's Attorney shall provide to the defense: (A) Statements of Defendant and Co-defendant All written and all oral statements of the defendant and of any co-defendant that relate to the offense charged and all material and information, including documents and recordings, that relate to the acquisition of such statements; (B) Written Statements, Identity, and Telephone Numbers of State's Witnesses As to each State's witness the State's Attorney intends to call to prove the State's case in chief or to rebut alibi testimony, those written statements of the witness that relate to the offense charged and are (i) signed by or adopted by the witness or (ii) contained in a police or investigative report, together with the name and, except as provided under Code, Criminal Procedure Article, or Rule (b), the address of the witness : (i) the name of the witness; (ii) except as provided under Code, Criminal Procedure Article, or Rule (b), the address and, if known to the State s Attorney, the telephone number of the witness, and (iii) the -45-

46 statements of the witness relating to the offense charged that are in a writing signed or adopted by the witness or are in a police or investigative report; (C) Searches, Seizures, Surveillance, and Pretrial Identification All relevant material or information regarding: (i) specific searches and seizures, eavesdropping, or electronic surveillance including wiretaps; and (ii) pretrial identification of the defendant by a State's witness; (D) Reports or Statements of Experts As to each State's witness the State's Attorney intends to call to testify as an expert witness other than at a preliminary hearing: (i) the expert's name and address, the subject matter on which the expert is expected to testify, the substance of the expert's findings and opinions, and a summary of the grounds for each opinion; (ii) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and (iii) the substance of any oral report and conclusion by the expert; (E) Evidence for Use at Trial The opportunity to inspect, copy, and photograph all -46-